Lady Liberty and Justice

Lawyers’ Committee News: NONDISCLOSURE

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Mick Harrison, Esq.


A six-year legal battle against the National Institute of Standards and Technology [NIST] and the Federal Emergency Management Agency [FEMA] to get access to data they used in preparing FEMA’s Building Performance Study of the collapse of World Trade Center [WTC] buildings on 9/11 has culminated in a court decision granting discovery to 9/11 researcher David Cole. Cole, the plaintiff, is represented by Lawyers’ Committee attorney Mick Harrison. The Lawyers’ Committee has supported this litigation from the start. NIST and FEMA fought to dismiss Cole’s Freedom of Information Act case but on December 21, 2021, the U.S. District Court for the District of Columbia denied their motion for summary judgment and granted Cole discovery. Discovery will allow Cole to inquire via depositions, document requests, and interrogatories into why FEMA and NIST failed to disclose key records known to exist regarding the collapse of WTC buildings on 9/11.


Cole submitted his FOIA request for records of the background and raw data FEMA used for its Building Performance Study on May 20, 2011. Among the items Cole requested were photographs, video, audio, field notes, memoranda, lab samples and lab results. FEMA initially claimed it had no responsive records. Later, FEMA said it had sent all its records to NIST without keeping paper or electronic originals or even copies for themselves. NIST and FEMA then delayed releasing any records to Cole for four years. Cole sued the agencies in November 2015. The following April, the agencies produced some records to Cole but withheld key responsive agency records that were known to exist, including a set of WTC-related drawings, CDs and a video. The recent court decision granting discovery should enable Cole to discover the fate of these key 9/11 agency records that NIST and FEMA have refused to produce for so long. If those records still exist, as they should, Cole will be able to ask the Court for an Order that these records be provided to him and the public. A detailed synopsis follows for those who wish to dive deeper into the details. The full 41-page decision by the Court is posted on the Lawyers’ Committee website. The Lawyers’ Committee will keep you updated on this historic case for which we will need your ongoing support to see us through discovery and final decision.


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A few days ago, the Lawyers’ Committee sent you a year-end greeting and update anticipating one or more 9/11 legal breakthroughs in the coming year. We hoped we’d see one of these soon, and now here one is: a breakthrough federal court ruling, giving us a new opportunity to get accountability from some recalcitrant federal agencies, which we cannot take advantage of without your help! The Lawyers’ Committee and 9/11 Researcher David Cole are pleased to announce this significant legal victory in the fight for 9/11 transparency and accountability.


This week, on Tuesday December 21, 2021, the U.S. District Court for the District of Columbia, Judge Sullivan, issued an important and long-awaited decision in the Freedom of Information Act (FOIA) case David Cole v. May et al., which was brought against the Federal Emergency Management Agency (FEMA) and the National Institute of Standards and Technology (NIST). This case involves a request to FEMA under the FOIA by 9/11 researcher David Cole for records of the data used by FEMA in preparing its Building Performance Study (BPS). The FEMA BPS was a study of the World Trade Center (WTC) (and nearby) buildings that collapsed or were seriously damaged on September 11, 2001 (9/11). In Judge Sullivan’s Opinion and accompanying Order of December 21, 2021, the District Court denied the agencies’ motion for summary judgment and granted Plaintiff Cole’s motion to conduct discovery.


The Lawyers’ Committee for 9/11 Inquiry, Inc. has supported Plaintiff Cole in this lawsuit from the beginning of this six-year litigation. Mr. Cole is represented by the Lawyers’ Committee’s Executive Director, public interest attorney Mick Harrison (at no cost to Plaintiff Cole), who serves as lead counsel. This case has a long history of FEMA and NIST failing to produce key agency records related to FEMA’s study of the WTC building failures on 9/11.


2011: Cole Files His FOIA Request for FEMA BPS Records (and FEMA Hides the Pea)


This saga began May 20, 2011, when Mr. Cole submitted his FOIA request to FEMA for records of the background and raw data used in the FEMA BPS regarding the collapse of WTC buildings on 9/11. The records requested included photographs, video, audio, field notes, lab samples, memoranda, and lab results. By December 19, 2011, FEMA claimed to have finished its search, asserting that it possessed no responsive records. Although some FEMA BPS related records had been previously posted by FEMA, key documents known to exist (that had been referenced by FEMA itself in its BPS report and in agency correspondence) were not released.


FEMA eventually offered the explanation that the reason FEMA could claim in 2011 to have no records of any data used for the detailed study it admits to publishing was that FEMA had sent all its BPS-related records to NIST, around May 2002, and that it had retained no physical or electronic copies of those records. On December 23, 2011, FEMA forwarded Mr. Cole’s request to NIST, which located numerous responsive documents. The two agencies then spent almost four years delaying release of these responsive records to Mr. Cole, until Mr. Cole sued them in November 2015, even though FEMA had determined by June 29, 2012, that it and NIST possessed at least 3,789 pages of records that were both responsive to Mr. Cole’s request and releasable under FOIA. The explanation offered to the Court by the Defendants for this extensive delay was an agency “mix-up” regarding which agency would respond to Mr. Cole.


In addition, FEMA also informed Mr. Cole in August 2012 that it had determined there were approximately 490,000 pages of boxed FEMA WTC-related records that had been placed in storage at the National Archives and Records Administration (“NARA”). FEMA did not volunteer to search these 490,000 pages of documents to determine if they contained records responsive to Mr. Cole’s FOIA request, nor have any of those documents been produced.


2015: Cole Files His FOIA Lawsuit (and FEMA Produces the Shells but Not the Pea)


Cole filed his FOIA lawsuit in November 2015. On April 20, 2016, FEMA produced to Mr. Cole and his counsel numerous records responsive to Cole’s FOIA request, but the key records were missing. On June 7, 2016, Attorney Harrison sent an email to Defendants’ counsel identifying important records known to exist but which had not been produced. Harrison noted, e.g., although a FEMA document showed a set of WTC drawings had been sent to a FEMA contractor, FEMA had failed to produce those drawings. Harrison also cited an agency inventory of BPS records which listed CDs, a video, and other drawings, all of which were missing from the records that FEMA produced. FEMA replied it was unable to locate those missing records.


2020: Magistrate Judge Finds Defendants’ Search Inadequate and Delays Unacceptable


Magistrate Judge Harvey was assigned by Judge Sullivan to make a recommended decision on the parties’ motions. Magistrate Judge Harvey issued a Report and Recommendation on March 9, 2020, recommending that the Court deny the Defendants’ Motion for Summary Judgment and grant the Plaintiff’s Motion for Discovery. Magistrate Judge Harvey found that “Defendants have not shown that their searches were adequate due to their failure to provide this Court with sufficient details about their methodologies.”


Magistrate Judge Harvey also found that “Defendants’ conduct—engaging in lengthy delays and inconsistent representations and failing to adequately explain [the delays and inconsistent representations] despite this Court’s clear expressions of concern,” warrants “limited” discovery for Mr. Cole (limited to the facts and issues related to the adequacy of the government’s records searches). Magistrate Judge Harvey in his Report pointed out “FEMA’s repeated failures to locate missing records that are undisputedly referenced in its disclosures,” FEMA’s “cursory explanations for its inability to locate those missing records,” and FEMA’s “inadequate descriptions of its searches.” Magistrate Judge Harvey concluded that Defendants FEMA’s and NIST’s pattern of conduct ‘raises a question’ as to whether Defendants have ‘been diligent and expeditious in complying with [their] FOIA obligations.’”


District Court Finds Defendants’ Failed to Demonstrate an Adequate Records Search


District Court Judge Sullivan, in his recent decision, adopted virtually all of Magistrate Judge Harvey’s recommendations. Judge Sullivan found that, like FEMA, NIST “fails to lay out its search terms or methodology in any detail.”


Judge Sullivan noted that Mr. Cole had “raised significant questions as to whether FEMA [had] processed documents in good faith in response to [his] FOIA request” and that it was “troubled by multiple aspects of the government’s actions,” including FEMA’s delay in disclosing responsive records until April 2016 despite its June 2012 determination that 3,789 pages of documents were releasable. The District Court was also “troubled by the government’s inconsistent, even contradictory, responses to [Mr. Cole’s] inquiries ….” District Court Judge Sullivan agreed with Magistrate Judge Harvey that Mr. Cole be granted limited discovery. Magistrate Judge Harvey found the explanation the agencies offered for their delay to be “problematic.” District Court Judge Sullivan noted that the Defendants concede that their proffered explanation for their delay is “far from a satisfying one,” and that FEMA’s “[s]leeping on its FOIA obligations for several years makes for a glaring lack of oversight by FEMA.”


Court Finds Defendants’ Handling of 490,000 Pages Sent to NARA Reflects Bad Faith


Judge Sullivan noted and agreed with Plaintiff Cole’s Attorney’s argument that in regard to the 490,000 pages of FEMA WTC records sent to the National Archives, that “[t]he Defendants’ handling of this issue of the 490,000 pages of agency 9/11 records sent to NARA reflects bad faith, because: (1) Defendants did not even identify these 490,000 pages of records to Plaintiff in their initial response to his FOIA; (2) Defendants then did not conduct a search of these files once their existence was disclosed; (3) Defendants then required, contrary to law, Plaintiff to file an additional FOIA request if he wanted these files searched to determine if they contained responsive records; (4) Defendants then made a false representation to Plaintiff which clearly misrepresented that the 490,000 pages of 9/11 files sent to NARA were known to contain no responsive records, contrary to their initial representation; and (5) finally Defendants argued to this Court … that the Magistrate erred on this issue in concluding there was an inconsistency in Defendants’ representations, without disclosing to this Court the complete language of Defendants’ initial representation that made this inconsistency apparent. … The Court agrees with Mr. Cole, even reviewing the [Magistrate Judge’s Report and Recommendations] de novo.”


District Court Concludes Plaintiff Cole is Entitled to Discovery


Judge Sullivan in his recent decision held that “[b]ased on the continued lack of details in the affidavits provided by FEMA, the Court concludes that this is the rare case where discovery, rather than supplemental declarations, is warranted as to the Defendants’ searches.” The Court has ordered Plaintiff Cole and the government to confer and to submit either a joint discovery plan or their separate proposed plans by January 7, 2022.


We Need Your Support to See this Case Through


The Lawyers’ Committee is a 501(c)(3) nonprofit organization. Donations are tax deductible. The critical discovery process is just starting. We will need your continued support to see this case through to its conclusion.

Thank you for your support for the Lawyers’ Committee’s work.

Mick Harrison, Ex. Dir., and the Lawyers’ Committee for 9/11 Inquiry, Inc. Board of Directors

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Court Document

DCT DC Mem Op Adopting Magis Opin in subst part 122121 Cole FEMA FOIA case